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Recent federal court rulings on the Video Privacy Protection Act and Facebook Pixel highlight a growing circuit split regarding online privacy rights. This article explores how the Second Circuit's decision in Solomon v. Flipps Media affects the future of digital privacy litigation.
Technological developments in the information age continue to baffle courts. Recently, the Second Circuit Court of Appeals refused to apply the Video Privacy Protection Act Facebook Pixel technology because Pixel does not make the private information readily available to an ordinary person. The ruling broadens a split between the federal circuit courts and shows how courts continue to struggle to adapt to the broad exchange of online privacy rights prevalent among tech giants.
The Video Privacy Protection Act (VPPA) was enacted in the 1980s after a video store released Robert Bork's rental history prior to his (unsuccessful) Senate Confirmation hearing. The act prevents "video tape service providers" from sharing consumers' personal identifying information related to viewing history. Nearly 40 years later, federal courts are asked to apply a statute created for the neighborhood blockbuster store to the ever-interconnected online media space. The statute provides statutory damages, punitive damages, and attorney's fees, often leading to complex digital privacy litigation.
The Second Circuit Ruling: Solomon v. Flipps Media, Inc.
The Second Circuit refused to make a decades-long connection between the VPPA and Facebook's Pixel Technology in Solomon v. Flipps Media, Inc. In this case, Flipps sent Facebook a series of URLs linked with Solomon's Facebook ID, a unique number connected to Facebook users' accounts. The Second Circuit ruled that this number did not constitute one that an ordinary person could use to identify Solomon; thus, the VPPA did not cover Pixel. Our business litigation attorneys in Chicago monitor these cases closely as they redefine corporate liability in the digital age.
The Growing VPPA Circuit Split and Its Impact on Privacy Rights
The Second Circuit's opinion joins the Third and Ninth Circuits' interpretation of the VPPA, but departs from the First Circuit. This VPPA circuit split highlights a fundamental disagreement: the First Circuit took a broader approach, holding that information that a sophisticated technology company—not an ordinary person—could use to identify a user is personal information under the act.
This federal court ruling marks yet another instance where the federal courts have veered in their interpretations of what constitutes privacy in the age of the tech giants. Solomon is yet another example of the federal courts struggling to keep pace with rapidly evolving technology. With the current circuit split, the extent of one's online privacy rights will depend on where in the country they live.
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